Respondent has moved that I disqualify myself from participation in this case.
More precisely, he has filed a petition for rehearing from this Courts 3-2
decision sanctioning him for violating Indiana Professional Conduct Rule 8.2(a). In part,
respondent seeks rehearing in order for Justice Rucker to address whether recusal is
appropriate in light of his participation on the Court of Appeals panel in
Michigan Mutual Insurance Company v. Sports , Inc., 698 N.E.2d 834, 845 (Ind.
Ct. App. 1998). Consolidated Pet. for Rehg and Mot. for Justice Rucker
to Recuse at 8.
To place respondents motion in context, a brief summary of the facts is
appropriate. In a lawsuit against Michigan Mutual Insurance Company alleging bad-faith denial
of insurance coverage, a jury awarded compensatory and punitive damages to Sports, Inc.
The trial court entered judgment on the jurys verdict, and on review
the Indiana Court of Appeals affirmed the judgment. I was a member
of the Court of Appeals at that time, and along with Judges Darden
and Garrard I served on the panel assigned to the case. Judge
Darden wrote the opinion and Judge Garrard concurred. I concurred in the
result  neither joining in the reasoning or rationale of the opinion, nor
writing a separate opinion of my own.
Michigan Mutual did not seek rehearing of the Court of Appeals opinion.
Rather, represented by the respondent and an attorney from the State of Michigan,
Michigan Mutual filed a petition to transfer in this Court. In the
petition respondent asserted that the Court of Appeals opinion materially misstated the record
by making affirmative misstatements of fact. In his supporting brief respondent amplified
his assertion with the following statement:
The Court of Appeals published Opinion in this case is quite disturbing.
It is replete with misstatements of material facts, it misapplies controlling case law,
and it does not even bother to discuss relevant cases that are directly
on point. Clearly, such a decision should be reviewed by this Court.
Not only does it work an injustice on appellant Michigan Mutual Insurance
Company, it establishes dangerous precedent in several areas of the law. This
will undoubtedly create additional problems in future cases.

Br. in Supp. of Appellants Pet. to Trans. at 1.

Indeed, the Opinion is so factually and legally inaccurate that one is left
to wonder whether the Court of Appeals was determined to find for Appellee
Sports, Inc., and then said whatever was necessary to reach that conclusion (regardless
of whether the facts or the law supported its decision).

Id. at n.2. On March 5, 1999, the Indiana Supreme Court denied
appellants petition to transfer. Mich. Mut. Ins. Co. v. Sports, Inc., 706
N.E.2d 555, 556 (Ind. 1999). The Court also entered an order striking
Michigan Mutuals brief as a scurrilous and intemperate attack on the integrity of
the Court of Appeals. Id. at 555. I joined this Court
thereafter on November 19, 1999.
On May 30, 2000, the Disciplinary Commission of the Supreme Court of Indiana
filed a complaint against respondent Michael A. Wilkins. Based on the above
quoted portions of the Michigan Mutual transfer brief, the Commission alleged that respondent
violated Rule 8.2(a) of the Rules of Professional Conduct.
See footnote A hearing officer
was appointed and after conducting a hearing determined that respondent violated the Rule
as charged. On June 13, 2002, respondent filed a petition with this
Court seeking review of the hearing officers determination. The five-page petition did
not cite the Court of Appeals opinion in
Michigan Mutual. In addition
to the petition itself, respondent also filed a twenty-seven page supporting brief.
Except for two passing references that were inserted in footnotes, respondent again did
not cite the Court of Appeals opinion in Michigan Mutual. See Br.
in Supp. of Pet. for Review at 2 n.3, 17 n.31. Rather,
respondent focused on the comments in his 1999 transfer brief to this Court
and the substance of the alleged Rule violation.
On October 29, 2002, this Court issued a 3-2 per curiam opinion determining
that respondent violated Professional Conduct Rule 8.2(a) and imposing a sanction of a
thirty-day suspension from the practice of law. See In re Wilkins, 777
N.E.2d 714 (Ind. 2002) (Shepard, C.J., and Dickson and Rucker, JJ., concurring; Sullivan
and Boehm, JJ., dissenting with separate opinions). Thereafter on November 19, 2002,
respondent filed a petition for rehearing. For the first time since these
proceedings began, nearly a year and a half ago, respondent moves for my
recusal. He does not seek my immediate disqualification. Rather, respondent wants
me to remain a part of these proceedings long enough to vote on
his petition for rehearing and only then cease further participation in this case.
Citing Canon 3(E) of the Indiana Code of Judicial Conduct respondent contends that
my recusal was and is required. Consolidated Pet. for Rehg and Mot.
for Justice Rucker to Recuse at 11.
See footnote The Canon provides in relevant
part:
(1) A judge shall disqualify himself or herself in a proceeding in which
the judges impartiality might reasonably be questioned, including but not limited to instances
where:

the judge has a personal bias or prejudice concerning a party or a
partys lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding .
. . .

Jud. Canon 3(E)(1)(a). The underlying thrust of respondents argument is that because
I served on the panel whose opinion respondent criticized, I should have disqualified
myself sua sponte from hearing his disciplinary matter.
There is no question that a judge is required to disqualify himself or
herself in any proceeding in which the judges impartiality might reasonably be questioned.
The Canon demands it. In addressing those concerns the issue has
been cast as whether an objective, disinterested observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant doubt
that justice would be done in the case.
Pepsico, Inc. v. McMillen,
764 F.2d 458, 460 (7th Cir. 1985). As this court has recently
stated, the issue is not whether the judge personally believes himself or herself
to be impartial, but whether a reasonable person aware of all the circumstances
would question the judges impartiality. In re Morton, 770 N.E.2d 827, 831
(Ind. 2002).
The facts and circumstances are these. First, I was completely unaware that
I had served on the underlying Court of Appeals panel. Neither before
the hearing officer nor in his petition to this court for review of
the hearing officers determination did respondent ever mention that I served on the
panel. Rather, at every opportunity respondent focused on the substance of
the comments that provided the basis for this disciplinary action. That was
my focus as well. Respondent does not reveal why he failed before
now to bring this matter to my attention. However, citing to several
cases in which I served on the Court of Appeals panel and sua
sponte decided not to participate once a party sought transfer to this Court,
respondent says that it was a forgone conclusion that Justice Rucker would recuse.
Consolidated Pet. for Rehg and Mot. for Justice Rucker to Recuse at
9. However, each case respondent refers to in support of this assertion
involved a petition to transfer from a case in which I either wrote
a separate dissenting opinion, see Bagnall v. Town of Beverly Shores, 705 N.E.2d
213 (Ind. Ct. App. 1999); or concurred outright in the majority opinion, see
In re Estate of Troxel, 720 N.E.2d 731 (Ind. Ct. App. 1999); Dullen
v. State, 718 N.E.2d 1237 (Ind. Ct. App. 1999); Rheem Mfg. Co. v.
Phelps Heating & Air Conditioning, Inc. 714 N.E.2d 1218 (Ind. Ct. App. 1999);
United States Gypsum, Inc. v. Ind. Gas Co., Inc., 705 N.E.2d 1017 (Ind.
Ct. App. 1998); Bosecker v. Westfield Ins. Co., 699 N.E.2d 769 (Ind. Ct.
App. 1998). Unlike a petition to transfer where the Court of Appeals
opinion or decision itself is being challenged, thereby instantly revealing the composition of
the panel deciding the case, the matter before this Court was different.
The issue before us was not the Court of Appeals opinion, but rather
what the respondent had to say about the opinion. The composition of
the panel deciding the opinion was not at all apparent, nor in my
view particularly relevant. The comments themselves were at issue; and regardless of
the panel members, either the comments were made with reckless disregard as to
[their] truth or falsity concerning the . . . integrity of a judge
or they were not. See Prof. Cond. R. 8.2(a).
In addition, by the time respondents disciplinary matter reached this Court, I had
served on the Court of Appeals for nearly nine years. During that
period the Court of Appeals issued over fourteen thousand opinions, some of which,
obviously, I authored, others of which I served as a member of the
panel. Absent the respondent bringing to my attention that I happened to
have served on the underlying Court of Appeals panel in this particular case,
I simply would have had no reason to assume my involvement. And
this is especially so considering that in his brief before this Court challenging
the hearing officers disciplinary ruling, respondent chose to cite to the Court Appeals
opinion only in passing in two of forty-five footnotes. Judges cannot be
call[ed] upon . . . to perform the impossible  to disqualify
themselves based on facts they do not know. Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 861 (1988). Here, the connection between the fact
that I served on the Michigan Mutual panel and the fact that I
participated in respondents disciplinary action is so attenuated that no judicial officer could
reasonably be expected to identify [this] potential for recusal without the issue being
raised by counsel. Natl City Bank, Ind. v. Shortridge, 691 N.E.2d 1210,
1211 (Ind. 1998).
Second, respondents failure to raise the issue of my involvement in the underlying
Court of Appeals opinion implies one of three possibilities: (1) the respondent
was aware that I had served on the Court of Appeals panel but
decided not to press the issue because he was satisfied that I would
be impartial in deciding this disciplinary matter; (2) the respondent was aware that
I had served on the panel but decided to await the outcome of
this Courts decision on his disciplinary matter and then seek recusal if the
decision were unfavorable; or (3) the respondent himself was unaware that I had
served on the panel. This latter possibility is highly unlikely given that
within days of this Courts decision both local and national press were reporting
it and specifically referencing my involvement in the underlying Court of Appeals opinion.
See, e.g., Kevin Corcoran, Lawyers Penalty Criticized, The Indianapolis Star (Nov. 5,
2002) (attributing a statement to source who said the case shouldnt have gone
against Wilkins, because Justice Robert Rucker had served on the Court of Appeals
panel Wilkins criticized. That should have kept Rucker from casting a deciding
vote . . . .), at http://www.indystar.com; David L. Hudson, Jr., Footnote
In Mouth: Indiana High Court Suspends Lawyer for Comments in Brief, ABA Journal
(Nov. 15, 2002) (noting [i]n an unusual twist, Justice Robert D. Rucker, who
voted with the 3-2 majority, also served on the appellate panel criticized in
Wilkins brief), at http://www.abanet.org/journal/ereport/n15suspend.html; Gary Young, Footnote Gets A Lawyer Suspended, National Law
Journal (Nov. 11, 2002) (commenting [t]he case has drawn controversy . . .
because one of the judges who voted for Wilkins suspension, Justice Robert D.
Rucker, served on the Court of Appeals until 1999 and had a hand
in the decision that Wilkins criticized), at http://www.nlj.com.
See footnote
As for possibility number two, respondents lack of timeliness in seeking recusal is
troubling. Counsel . . . may not lie in wait, raising the
recusal issue only after learning the courts ruling on the merits.
Tyson
v. State, 622 N.E.2d 457, 460 (Ind. 1993) (quoting Phillips v. Amoco Oil
Co., 799 F.2d 1464, 1472 (11th Cir. 1986)); see also Leslie W. Abramson,
Judicial Disqualification under Canon 3 of the Code of Judicial Conduct 11 (2d
ed. 1992) (identifying two primary policy reasons for timeliness in the filing of
recusal motions: (i) a party, although aware of facts that may disqualify a
judge, may take a chance on obtaining a favorable trial result and then
complain only if the result is unfavorable, and (ii) a motion to recuse
is disruptive and delays litigation). That leaves possibility number one: respondent was
aware that I had served on the Court of Appeals panel but decided
not to press the issue because he was satisfied that I would be
impartial in deciding this disciplinary matter. If that is in fact the
case, then respondent is correct. Nothing has changed except respondent did not
receive the result he anticipated.
Respondent also insists that apart from questions of partiality under Canon 3E(1), my
recusal is nonetheless required because I have personal knowledge of disputed evidentiary facts
under Canon 3(E)(1)(a). Consolidated Pet. for Rehg and Mot. for Justice Rucker
to Recuse at 16. Specifically he claims [a]s one of the three
participants in the Michigan Mutual panels deliberations which must have taken place at
least before and/or after the oral argument of July 9, 1998, Justice Rucker
unquestionably has personal knowledge of the facts bearing upon Mr. Wilkins statement.
Id.
It is not at all clear to me exactly which facts the respondent
is referring to. His statement was that the Court of Appeals opinion
is so factually and legally inaccurate that one is left to wonder whether
the Court of Appeals was determined to find for Appellee Sports, Inc., and
then said whatever was necessary to reach that conclusion (regardless of whether the
facts or the law supported its decision). Br. in Supp. of Appellants
Pet. to Trans. at 1 n.2. If respondent is implying that I
participated in a court conference where a part of the discussion involved ruling
against his client regardless of the law and the facts, then he is
mistaken. More to the point, the question is one of respondents state of
mind and of respondents conduct. See, e.g., In re Atanga, 636 N.E.2d
1253, 1257 (Ind. 1994). What did Respondent know at the time he
made the statements . . . ? Did he have a basis
upon which to make statements concerning the Court? Did the statements he
made challenge the qualifications or integrity of the judge? Were the statements
reckless in light of his knowledge and experience? Id. (sanctioning an attorney
for violating Rule of Professional Conduct 8.2(a) for among other things referring to
a trial judge as ignorant, insecure, and a racist). Here, respondent fails
to explain how any facts that I possess could have any bearing on
his state of mind or further what those facts may be.
I am firmly convinced that I have fairly and impartially decided respondents disciplinary
matter. Even had I been conscious of my involvement in the underlying
Court of Appeals opinion, I cannot now say that I absolutely would have
disqualified myself from deciding the instant case. After all, as reflected by
my concur in result vote, although I agreed with the majoritys conclusion that
the trial courts judgment affirming the jury verdict was correct, I did not
agree with the majoritys reasoning and rationale in reaching that conclusion. Consequently,
I would not have been especially concerned about the respondents criticism of the
opinion.
Nonetheless, I acknowledge that the question is not whether I personally believe I
have been impartial. Rather, it is whether a reasonable person aware of
all the circumstances would question my impartiality. Morton, 770 N.E.2d at 831.
And in this context a reasonable person has been described as the
proverbial average person on the street with knowledge of all the facts and
circumstances alleged in the motion to recuse . . . . In
re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983). Echoing this
sentiment one court has observed disqualification of a judge is mandated whenever a
significant minority of the lay community could reasonably question the courts impartiality.
Pennsylvania v. Druce, 796 A.2d 321, 327 (Pa. Super. Ct. 2002), appeal granted
in part, 809 A.2d 243 (Pa. 2002). In this case there is
a possibility, particularly outside of the legal community, that my impartiality could be
questioned. See, e.g., United States v. Jordan, 49 F.3d 152, 157 (5th
Cir. 1995) (noting that the average person on the street as an observer
of our judicial system is less likely to credit judges impartiality than the
judiciary); In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) (observing that
a lay observer would be less inclined to credit a judges impartiality than
other members of the judiciary). Because a judge has a duty to
promote public confidence in the impartiality of the judiciary, Tyson, 622 N.E.2d at
459, and because [c]oncerns about public confidence in the judicial system underlie Canon
3, id., out of an abundance of caution I therefore recuse myself from
further involvement in this case. And I do so effective immediately declining
respondents request to consider first his petition for rehearing now pending before this
Court.

A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public legal officer, or
of a candidate for election or appointment to judicial or legal office.

Ind. Professional Conduct Rule 8.2(a).

Footnote: Respondent also cites Canon 2(A) which provides, [a] Judge shall respect
and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary.
Ind. Judicial Conduct Canon 2(A). In doing so, respondent provides no
independent assessment of its applicability. Rather he references the impartiality of the
judiciary component of this Canon and then shifts to a discussion of impartiality
as the term appears in Canon 3(E)(1).
See Consolidated Pet. for Rehg
and Mot. for Justice Rucker to Recuse at 14-16.Footnote: An observation by the 2nd Circuit Court of Appeals concerning media
exposure is instructive:

[W]ith regard to the appearance of partiality, the appearance must have an objective
basis beyond the fact that claims of partiality have been well publicized. .
. . That which is seen is sometimes merely a smokescreen.
Judicial inquiry may not therefore be defined by what appears in the press.
If such were the case, those litigants fortunate enough to have easy
access to the media could make charges against a judges impartiality that would
effectively veto the assignment of judges. Judge-shopping would then become an additional
and potent tactical weapon in the skilled practitioners arsenal. The test, as
we have stated, is one of reasonableness, and the appearance of partiality portrayed
in the media may be, at times, unreasonable.